There's an archived article on this topic. The board member who cannot prove their claim could be sued and then drag your coop into the lawsuit. You should look into your coverage.


June 4, 2000
YOUR HOME; Liability And Boards Of Co-ops
By JAY ROMANO

ON April 11, the New York Court of Appeals, the state's highest court, addressed the issue of whether corporations, including co-op housing corporations, can be required to pay punitive damages assessed against their board members. The court's answer -- a qualified no -- has been unsettling for co-op corporations and their board members.

''I think a lot of people are nervous about this decision,'' said Richard Siegler, a Manhattan co-op lawyer. ''It's going to make people more hesitant to serve on co-op boards, and it will make those who do serve more reticent about making decisions that could be controversial.''

The case in which the court ruled, Biondi v. Beekman Hill House Apartment Corporation, was the final chapter in a legal case that began in 1995.

At that time, a shareholder in the apartment corporation, a co-op at 425 East 51st Street, sought permission to sublease her apartment to Gregory and Shannon Broome. When the board denied the request, the Broomes filed suit under the federal Fair Housing Act and other antidiscrimination laws, charging that the denial was based upon Mr. Broome's race. He is black; his wife is white.

After a jury found in favor of the Broomes, the couple was awarded a total of $640,000 in damages. Of that amount, Nicholas A. Biondi, the president of the board, was ordered to pay $230,000 in compensatory damages and $125,000 in punitive damages. After subsequent settlement conferences, the compensatory damages ended up being paid by the co-op's insurance carrier while Mr. Biondi remained personally liable for $124,000 in punitive damages.

Mr. Biondi then filed a lawsuit against Beekman Hill House seeking indemnification, a form of reimbursement, for that amount. The basis of his claim was a clause in the co-op's bylaws that required the corporation to indemnify board members for any ''judgments, fines, amounts paid in settlement and reasonable expenses'' incurred as a result of their good-faith actions on behalf of the corporation.

In 1999, after a lower court dismissed Mr. Biondi's claim, he appealed to the Court of Appeals. In April, the court affirmed the lower court's dismissal, saying that in this case, indemnification for punitive damages was prohibited by public policy.

''What the court is basically saying is that it is against public policy to reimburse an individual director for capricious, arbitrary or illegal conduct,'' Mr. Siegler said, adding that while this may seem reasonable for conduct clearly undertaken in bad faith, it becomes a bit more murky in situations in which a board member, acting in what he or she may believe to be in good faith, nevertheless crosses the line and does something for which a penalty is assessed.

And it is that uncertainty -- coupled with an increasing number of federal, state and local laws that expose board members to punitive damages, fines or other penalties -- that Mr. Siegler and other lawyers say make it harder to find volunteers to serve on co-op boards.

''I don't think people will be as willing to serve if they feel they won't be indemnified for actions taken on behalf of the corporation,'' Mr. Siegler said, adding that in addition to the potential liability board members face when dealing with federal, state and local laws against discrimination, there are also some less obvious exposures.

For example, he said, failure to comply with the city's window-guard law, the elevator-inspection law and the federal lead paint disclosure law could all subject directors to substantial fines and penalties.

Bruce A. Cholst, another Manhattan co-op lawyer, said that while current and prospective board members may understandably be concerned about the impact of the Court of Appeals decision in the Biondi case, there are subtleties contained in it that could still make it possible for co-ops to reimburse board members for punitive damages under certain circumstances.

''The Court of Appeals held that public policy prohibits boards from indemnifying directors for punitive damages imposed for acts of bad faith,'' Mr. Cholst said. ''But what is significant about this decision is the court's definition of the term 'acts of bad faith.' '' The court, Mr. Cholst said, defined ''bad faith'' as the absence of a ''reasonable belief'' by board members that their conduct served ''the best interests of the corporation.'' In other words, he said, it is still possible for a board member to be reimbursed for punitive damages if he can adequately demonstrate that he was acting in good faith for the benefit of the co-op.

Accordingly, he said, punitive-damage awards, fines or penalties arising from errors of judgment -- following another person's misguided advice, for example -- can probably be reimbursed if a board member can establish that he was acting in the best interests of the co-op.

''The first precaution that should be taken by boards concerned about this issue is to review their bylaws to make sure that all existing loopholes are adequately plugged,'' Mr. Cholst said, adding that if the bylaws do not permit reimbursement for ''judgments, fines, amounts paid in settlement and reasonable expenses,'' they can be amended to do so. In addition, he said, the bylaws can also include a provision permitting reimbursement of legal costs before a final decision in the case.

''If they don't,'' he said, ''then board members who are individually sued are required to pay their own defense costs upfront and then seek reimbursement from the co-op only after the proceeding has been concluded in their favor.''

The bylaws should also contain a provision, Mr. Cholst said, that protects board members from liability to shareholders for anything they might do in good faith on the corporation's behalf.

Finally, Mr. Cholst said, if a board is particularly uncomfortable about the potential for having to pay punitive damages, it should talk to its insurance broker about finding coverage. While New York law bars insurance companies from selling such coverage in the state, he said, it can be obtained from ''offshore companies,'' as they are known, most of them in the Caribbean.

Martin Eveleigh, a manager at P. D. Insurance, in Tortola, British Virgin Islands, said his company offered coverage for punitive damages when they are imposed concurrently with compensatory damages, as was the case with Mr. Biondi.

''We draw a distinction between punitive damages and fines,'' Mr. Eveleigh said, explaining that insurance from his company specifically excludes fines and penalties.

He said that the maximum coverage now available is $500,000 and that the individual or company seeking coverage must also have a standard liability policy. The yearly premium for punitive-damage coverage starts at about $1,500, Mr. Eveleigh said, depending on the deductible and the amount of liability coverage.

There are, of course, some drawbacks to dealing with an offshore insurer. Donald Gabay, a Manhattan lawyer, said that New York's insurance guarantee fund, which protects policyholders if an insurer goes bankrupt, would not apply here. In addition, he said, offshore companies may operate with less regulatory oversight.

Arthur I. Weinstein, a Manhattan lawyer and the vice president of the Council of New York Cooperatives and Condominiums, said that if a co-op determined that punitive-damage coverage from an offshore company was ''affordable and enforceable,'' the board should consider it.

''It is always in the best interest of the co-op to get the maximum amount of insurance it can reasonably afford for its directors,'' he said. ''How else are you going to get good people to serve?''

* Copyright 2006 The New York Times Company